Individual schools will legally “cease to exist” and be left powerless to leave academy chains under government plans for a fully academised system, experts have warned.
The government has said that all state schools must become academies by 2022 and has made it clear that it expects most to become part of multi-academy trusts (MATs).
But lawyers and headteachers’ leaders have cautioned that schools will lose all independence in legal terms once they join a MAT, becoming mere “local branches” of the trust. They fear that some schools may be unaware of the full implications.
Chancellor George Osborne unveiled the academisation plans in his Budget last month, pledging that they would “set schools free from the shackles of local bureaucracy”.
But legal experts are urging schools to think “very carefully” about their next move, warning that they will not be able to leave a MAT once they have joined. As set out in the Academies Act 2010, schools will become part of a joint academy trust and will lose their single-school status (see box, bottom right).
David Wolfe, a QC with Matrix Chambers and a specialist in education law, told TES that a school in a MAT had “no more ability to move to another MAT than a branch of Tesco can decide to become Sainsbury’s”.
“A school in a MAT has no legal identity,” Mr Wolfe said. “It has no existence independent of the MAT. In the same way as your local Tesco Metro has no existence separate from Tesco. Could your local Tesco Metro – the staff, the shelves, the customers – decide to become a Sainsbury’s? Of course not. For ‘school’, read ‘local branch’.”
Russell Hobby, general secretary of the NAHT headteachers’ union, said that unless the government revised its proposals, he feared that some schools would end up trapped in “really bad” trusts.
Elizabeth Davis, head of education at law firm Blake Morgan, argued that by introducing a fully academised system, the government had applied a “company structure” to the schools landscape.
“[The MAT] is a company,” she said. “Although the word trust is used, it is totally and utterly confusing – it’s a company. If you look at the model documents, you will see the articles of association for a trust and it is a company just as any other company has articles.”
But heads, staff and governing bodies may find the idea of their schools losing all legal independence more disconcerting than the corporate language.
As soon as a school enters a MAT, everything that belonged to it then becomes part of the wider trust – the teachers, desks, books, IT, even the stationery.
Furthermore, if a school finds that the trust it has joined does not fit with its ethos, or if the relationship does not work out as it had hoped, the school has no ability to leave the MAT by itself.
A life sentence
As Matthew Wolton, who heads up the public sector arm of solicitors’ firm Clark Holt, put it, the arrangement is “like getting married, but without the possibility of a divorce” (see box, right). As such, schools are being urged to think very carefully before they begin any courtship with a MAT.
“You have to look very closely at the MAT you are looking to join – what their attitudes and approaches are towards giving [you] independence, flexibility, freedoms, etc – because once you get in, it is down to them,” Mr Wolton added. “You can’t get out once you’re in.”
The only way a school can leave a MAT is if a regional schools commissioner (RSC) and the education secretary believe it is underperforming as part of the trust. But even then, the institution is unlikely to allowed to revert to being a standalone school once again.
Around 100 academies have been “rebrokered” – where a school is moved from one trust to another – but the decision is usually made by an RSC based on concerns about a school’s performance within its MAT.
The country’s largest sponsor, Academies Enterprise Trust, relinquished control of 10 of its schools amid fears over standards, and another large chain, E-Act, was stripped of 10 schools after “serious concerns” were raised about performance. But the exact triggers that could lead to a school being removed from its trust remain unclear.
‘Barrier’ to academisation
According to Mr Hobby, the lack of an individual legal identity for schools is the “biggest barrier to universal academisation”.
“It will put off huge numbers of people who are not pro- or anti-academy but would not want their school to disappear as an entity in the process,” he said.
Mr Hobby believes government officials will have to look again at “umbrella trusts”, which preserve the legal entity of schools.
“The trouble is if you create thousands more trusts in a short space of time, some of those are going to be really bad and there is no way out of them once you’re in,” he said. “So to protect everybody, we need to keep schools as separate legal identities.”
The union leader said that he was advising heads not to “make any hasty decisions”.
The Department for Education told TES that “individual academies are already able to agree with their MAT and RSC when they want to leave or move trusts, and this will continue”.
But according to legal experts, schools are unable to decide to leave of their own volition as it is up to the judgement of the RSC.
The DfE added that in the future it would consider whether there was a need for more “routine periodic” reviews of MAT arrangements, and would look into giving parents the ability to petition their school to move to a different trust.
How schools could lose their independence
The MAT view: If a school wanted to leave, we’d let them go
Steve Lancashire, chief executive of Reach2 and Reach4 academy chains, said that he was always “very upfront from day one” that a school would lose its legal independence when it joined a trust.
But he was eager to stress that he saw this as a positive, and that his chain was “not a corporate trust”.
“We see it as being part of one big family, because we’re the same trust,” Mr Lancashire said. “One of the mantras that we work by as a trust is ‘individuality not conformity’.
“We don’t dictate to schools what their individual ethos will be; we don’t dictate to schools about what uniform they should wear or what their individual school policies should be.”
The chief executive added that it was also his job to make sure schools wanted to be part of the trust. “I don’t think there will ever be a point that a school will want to leave,” he said. “But if a school really did not want to be part of our trust, then we would let them go.”
The lawyer’s view: ’Til death do us part? (Or what happens when a school joins a multi-academy trust)
A question often asked by schools is what would actually happen if they were to join a multi-academy trust (MAT). Do they, as the commonly held view goes, lose all their independence?
In legal terms, the situation is quite clear: a MAT is a single legal entity that controls all the schools within the group. If a school joins a MAT, then all its assets, land, employees, and so on, will belong to the MAT.
Where things are less straightforward, though, is what happens next, and the critical point to note is that not all MATs are the same.
Some MATs operate on the basis of central control – the name of the school will change when it becomes part of the MAT and all schools will have the same uniform, the same policies and the same ethos.
Other MATs see every school as having its own identity. Although they want some commonality – such as sharing the same ICT, HR and finance practices – they will celebrate and protect the individuality of each school.
Some MATs will have a board of directors that makes practically all the decisions about how every school is run, whereas other MATs will look to delegate as much decision-making as possible to a school’s local governing body (once those governing bodies have shown they are capable).
There is no absolute right or wrong approach, because every school is different. As a simplistic example, a strong, high-performing school may prefer to join a MAT where their idiosyncrasies will be welcomed, whereas a school with long-standing problems and a poor reputation may welcome the opportunity to “start again” with a new name and a well-known national brand behind it.
One way to think about it is that joining a MAT is like getting married, but without the possibility of getting a divorce. (There are ways that academies can leave their MATs, but these are only in extreme cases where the regional schools commissioner makes the final decision.)
The most important thing for both schools and MATs is not deciding to proceed until they are absolutely sure that they are right for each other. Both parties must ensure they have the same philosophy and ethos about how education should be provided and schools run. Joining a MAT is one of the most important decisions that a school can make and the right choice can turn out to be hugely beneficial. As the saying goes, only fools rush in.
Matthew Wolton is a partner at commercial solicitors’ firm Clark Holt